No. 3--02--0390

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2004

JUSTICE SCHMIDT delivered the opinion of the court:

The State's evidence established that on the afternoon ofOctober 13, 1999, defendant visited the brothers Elisha andElijah Dabney and their friend, Darryl Jordan, at the Dabneyresidence in Hopkins Park. Defendant invited the Dabneys andJordan to party with him at defendant's girlfriend's home inKankakee. Defendant's girlfriend, Lola Brown, was the mother ofEric Tatum, a friend of the Dabneys and Jordan. The invitees,all under age 21, promptly accepted the invitation and got intodefendant's vehicle. En route to Brown's house, defendant firststopped at a dog kennel, where defendant reported that hischildren's rottweiler puppies had been missing from his homesince the night before. Defendant next drove to a liquor storeto purchase alcohol and cigars.

At Brown's house, defendant offered the young men drinks and"swisher" cigars laced with marijuana. At some point, Tatum andanother friend stopped by and joined the party for a short while. After they left, defendant retrieved a shotgun which Elishadescribed as a black, 12-gauge sawed-off with the handle cut andblack tape on the end. Defendant ordered the Dabneys and Jordanto get down on the floor. He aimed the gun at them and asked whohad broken into his house. Defendant kicked both of the Dabneybrothers in the head and then fired once at Jordan, hitting himin the left shoulder. Defendant then left the house with theshotgun. Jordan yelled at Elisha to run for help, and then hepassed out by the front door. Elisha ran out the back door andproceeded to the liquor store to telephone the police.

On cross-examination, Elisha said he sold a Cutlass Supremeto defendant two months before the shooting incident. He deniedthat he sold anything other than the car. He also denied thatanyone else was present at the time of the sale. He said henever had a weapon or saw the shotgun used in the shootingincident before defendant pulled it out and aimed it at them. Onredirect, Elisha testified that he did not own the shotgun; hedid not pull it out on the date of the incident; he did notstruggle with defendant for control of the gun; and it did notdischarge accidentally.

Elijah testified that buckshot hit him under his left eye. He said he ran across the street after defendant left. There, heencountered Brown and Kankakee police officer Avery Ivey, Jr. Elijah told the officer that he had been shot. Ivey observedthat Elijah's face was bleeding from a round gunshot wound. Heradioed for an ambulance and assistance.

Patrolman Jose Lema arrived on the scene and approached thefront of the house, where he found Jordan's body blocking thedoor. He entered the house through the rear door and determinedthat Jordan had suffered a large gunshot wound to the back. Detective Earl Cote, who also responded to the scene, testifiedthat he observed a gunshot wound to Elijah's left cheek as he andJordan were being loaded into the ambulance. Cote said the shapeand size of the wound were consistent with buckshot recoveredfrom inside the house.

Elijah was transported from St. Mary's Hospital to Loyola byhelicopter. He testified that he was "in bad shape" and neversaw what, if anything, was removed from his face. Jordantestified that he was treated for a punctured lung and threebroken ribs. Buckshot removed from Jordan's body at the hospitalwas turned over to Cote and admitted into evidence at trial.

Following the State's case in chief, defendant called hislive-in girlfriend, Kathy Black, as his first witness. Blacktestified that she knew Elisha Dabney as "Pee Wee." She saidthat he came to her home in mid-August 1999, seeking to sell his1989 gray Cutlass to defendant. Black said she was interested inthe car and looked inside. At that point, the prosecutorobjected to the relevancy of Black's testimony.

In an offer of proof, Black stated that on the frontpassenger seat of the Cutlass she observed a long gun with grayduct tape on the thick end where the handle had been cut. Shesaid that Pee Wee offered to sell the gun to defendant, but hedeclined. She said Pee Wee then removed the gun from the car. Black paid for the car, and defendant drove him home. On cross-examination, the prosecutor asked if the gun was a rifle. Blackresponded, "That's what I would say, some type of gun."

Following arguments of counsel, the court sustained theprosecutor's objection. The court ruled that Black's testimonyregarding the gun was not relevant, because the gun she describedwas not the same one used in the offense. Further, the testimonycould not be admitted for impeachment purposes because nofoundation was laid during defense counsel's cross-examination ofElisha Dabney. Based on the court's ruling, defense counselreleased Black, and the court instructed the jurors that theywere not to concern themselves as to why she would not betestifying further.

Defendant then testified on his own behalf. He initiallyadmitted that he had a 1997 conviction for simple robbery. Hesaid that Elisha brought the sawed-off shotgun with him whendefendant picked up the three men on the date of the offense. Defendant said that after Tatum left the party, defendant askedElisha about the puppies. Defendant told him that he had heardthat Elisha had been at his house the night before. Defendantsaid that a big argument ensued, and Elisha became verydefensive. He said Elisha reached over and grabbed the shotgun. Defendant then dashed across the room and grabbed the gun. During a struggle over the gun, it discharged and Jordan fell tothe floor. Defendant said he then poked Elijah under his lefteye with the barrel of the gun. He checked Jordan's wound andpresumed he was dead. Defendant said he then "panicked, freakedout" and left. Defendant denied that he intended to kill Elishaor Jordan.

On cross-examination, defendant explained that he fled thescene and checked into a motel in East Hazelcrest under the nameof James Vance. He left his car with the shotgun on the backseat at the motel and went to Mississippi. Defendant denied thathe ever owned a gun, but he admitted that the police had foundhim in possession of a .380-caliber handgun approximately twoweeks before the shooting incident.

In rebuttal, the State impeached defendant's denial of gunownership with evidence that he gave a written statement to thepolice on January 24, 2001, in which he said, "I had my gun takenby another agency (police)." Defendant also said during theJanuary 2001 interview that he struck Elijah under the right eyewith the shotgun.

Following closing arguments, the jury found defendant guiltyas charged. The court subsequently denied posttrial motions andimposed consecutive prison sentences of 18 and 6 years for theattempted murders of Darryl Jordan and Elijah Dabney,respectively.

On appeal, defendant first contends that the State failed toprove attempted murder and aggravated battery of Elijah Dabney,because the evidence was insufficient to show that the wound onElijah's face was caused by a shotgun projectile. Defendantsuggests that, in the absence of physical evidence or medicaltestimony proving that a projectile was removed from Elijah'sface, the wound could have been caused by a pebble on defendant'sshoe.

When reviewing the sufficiency of the evidence, we mustconsider all evidence introduced at trial in the light mostfavorable to the State and determine whether any rational trierof fact could have found the essential elements of the crimebeyond a reasonable doubt. People v. Wittenmyer, 151 Ill. 2d175, 601 N.E.2d 735 (1992). This court will not overturn acriminal conviction unless the evidence is so improbable orunsatisfactory that it creates reasonable doubt as to thedefendant's guilt. People v. Collins, 106 Ill. 2d 237, 478N.E.2d 267 (1985).

Defendant cites to no authority that would require the Stateto produce medical or forensic evidence to prove the offensescharged. The State's theory of guilt with respect to Elijah'swound was one of transferred intent--i.e., Elijah was injured asa result of defendant's attempted murder of Jordan. See Peoplev. Ephraim, 323 Ill. App. 3d 1097, 753 N.E.2d 486 (2001). Thistheory was amply supported by the State's evidence. At trial, itwas undisputed that the sawed-off shotgun wielded by defendant onOctober 13, 1999, was fired only once. Testimonial evidence bypolice officers responding to the scene within minutes of theshooting corroborated Elijah's testimony that he was struck inthe face by buckshot from the same blast that tore into Jordan'sshoulder. The hole in Elijah's face was consistent with pelletsrecovered from the scene. Based on the evidence, the jury wasjustified in rejecting defendant's theory at trial that the holewas caused by poking Elijah with the barrel of the shotgun, andwe will not speculate in this appeal that the hole was caused bydebris on defendant's shoe. The evidence was not so improbableor unsatisfactory as to leave a reasonable doubt as todefendant's guilt of the offenses committed against Elijah Dabneyon a transferred intent theory. Accordingly, defendant is notentitled to a reversal of his convictions. See Ephraim, 323 Ill.App. 3d 1097, 753 N.E.2d 486.

Next, defendant claims that he was deprived of his right topresent a defense when the court sustained the State's objectionto Kathy Black's testimony. He argues that the court erroneouslyruled that the testimony was neither relevant nor admissible toimpeach Elisha Dabney.

While it is true that a defendant has the right to present adefense (People v. Manion, 67 Ill. 2d 564, 367 N.E.2d 1313(1977)), it is also true that the trial court is vested withbroad discretion in ruling on the admissibility of evidencesought to be excluded as irrelevant. People v. Ward, 101 Ill. 2d443, 463 N.E.2d 696 (1984). In assessing the trial court'sexercise of discretion, we must determine whether the profferedtestimony would have made the question of the defendant's guiltof the charged offenses more or less probable. Ward, 101 Ill. 2d443, 463 N.E.2d 696. A court may properly refuse evidence asirrelevant if it is uncertain or remote in time. Ward, 101 Ill.2d 443, 463 N.E.2d 696.

Kathy Black's proffered testimony related to a gun thatElisha allegedly wanted to sell to defendant two months beforethe shooting incident in this case. She said the gun was longand had a cut handle and gray duct tape; it could have been arifle. Defendant sought to introduce the testimony in support ofhis theory that Elisha brought the same weapon to Brown's houseon October 13, 1999, and drew it on defendant immediately beforedefendant grabbed the weapon and it fired.

The problem with defendant's offer of proof was that Black'stestimony was both uncertain and remote. It was undisputed thatthe weapon used in the offenses on October 13, 1999, was a sawed-off shotgun (not a long gun like a rifle) with the handle cut offand black tape (not gray duct tape) on the handle end. Evenassuming that Black was trying to describe the same weapon, hertestimony about what happened in August 1999 was too remote toshed light on who brought the gun to Brown's house on the date ofthe offenses. Accordingly, we cannot say that the trial judgeabused her discretion in sustaining the State's relevancyobjection.

Defendant argues in the alternative that the court shouldhave admitted the testimony as impeachment of Elisha Dabney'stestimony that he had never seen the shotgun or possessed itbefore October 13, 1999. Again, we find no abuse of the court'sdiscretion. Generally, a cross-examiner may impeach a witness ifa proper foundation for the impeachment is laid; however, he maynot impeach a witness on collateral matters. People v. Collins,106 Ill. 2d 237, 478 N.E.2d 267 (1985). A matter is collateralif it cannot be introduced for any purpose other than tocontradict. People v. Hutson, 223 Ill. App. 3d 50, 584 N.E.2d975 (1991).

In this case, defendant failed to lay a foundation forBlack's testimony during cross-examination of Elisha Dabney. Henever asked Elisha whether there was a gun in the car he sold toBlack in August 1999. Moreover, whether Elisha had a weapon inhis possession in August was clearly collateral to the questionof whether he had possession of the sawed-off shotgun used in theshooting of October 13. Accordingly, we find no abuse of thecourt's discretion in denying admission of Black's testimonysolely for impeachment purposes.

As another alternative, defendant claims that his attorneyprovided ineffective assistance of counsel when she failed to laya foundation to impeach Elisha. This argument is not well taken.

To establish ineffective assistance of trial counsel, thedefendant must show both prejudice and deficient representation. Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S.Ct. 2052 (1984). Prejudice is shown if there is a reasonableprobability that the result of the trial would have beendifferent had counsel had not committed the errors complained of.Strickland, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.

The evidence of defendant's guilt as presented in theState's case here was overwhelming. Even if Black's testimonyhad been admitted, there is no reasonable probability that thejury would have found defendant not guilty of the chargedoffenses. Accordingly, defendant is not entitled to a new trialon this ground.

Last, defendant argues that he is entitled to a new trialbecause of numerous prejudicial comments made during theprosecutors' closing arguments. He argues that the prosecutorsimproperly (1) placed the integrity of the office of the State'sAttorney behind the credibility of its witnesses, (2) misstatedthe evidence, (3) accused defense counsel of attempting tomanufacture reasonable doubt by confusing the jury, (4) appealedto the jury's passions and prejudices by repeatedly dubbingdefendant a liar and imploring the jury to send him a messagethat his conduct would not be tolerated, and (5) commented on hiscriminal background. Defendant contends that the comments, bothindividually and cumulatively, constituted plain error.

To preserve errors made in closing arguments, the defendantmust raise an objection both at trial and in his posttrialmotion. People v. Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124(1988). Where he fails to do so, the error is waived and willnot be considered on review unless it rises to plain error (134Ill. 2d R. 615(a)). Plain error may be found where the evidenceof guilt is closely balanced or where the alleged error wasseriously prejudicial and prevented the defendant from receivinga fair trial. People v. Hudson, 157 Ill. 2d 401, 626 N.E.2d 161(1993).

Defense counsel in this case filed a motion in limineseeking to bar the State from making remarks that were foundobjectionable in various reported decisions in other cases;however, she failed to make contemporary objections during theState's closing arguments. Without contemporaneous objections,the trial court had no opportunity to give cautionaryinstructions. Therefore, the contentions of error based on theprosecutor's comments are deemed waived and will not be reviewedunless plain error resulted. See Enoch, 122 Ill. 2d 176, 522N.E.2d 1124.

As aforesaid, the evidence of defendant's guilt was notclosely balanced. We have reviewed defendant's arguments solelyto determine whether the comments were so egregious as to havedeprived defendant of a fair trial. Having considered all of theallegedly improper comments individually and cumulatively, wecannot say that the prosecutor's remarks could have affected thejury's verdict. Accordingly, the closing arguments will not bereviewed under the plain error doctrine.

Although plain error did not result in this case, wenevertheless take this opportunity to caution prosecutors torefrain from making comments such as, "Send the defendant back tojail" and "Send him a message." References to a defendant'sresidency at the county jail improperly imply that the defendantis a bad man deserving of punishment; and sending messages,whether to the defendant, to the police or to society, is not thejury's job. It is wrong to imply that the guilty verdict formmay be used for any purpose other than a finding that allelements of the offense were proved beyond a reasonable doubt. We anticipate that savvy prosecutors will refrain henceforth fromincluding "back to jail" and "message sending" comments in theirclosing arguments.

The judgment of the circuit court of Kankakee County isaffirmed.

Affirmed.

HOLDRIDGE, P.J., concurs.

McDADE, P., concurs in part and dissents in part.

JUSTICE McDADE, concurring in part, dissenting in part

I concur with the majority's findings that (1) the evidenceproduced by the State was sufficient to prove defendant KendrickHayes guilty of the charged offenses beyond a reasonable doubt,and (2) the trial court's decision to deny Karen Black'stestimony was not an abuse of discretion. Despite thisagreement, I would require that the defendant be retried becausethe statements made by the prosecutor were so improper that theyconstitute plain error that deprived him of a fair trial. Idissent from the majority's contrary decision.

I take this position for the following reasons.

Pursuant to supreme court rule 615(a) (134 ILCS R 615(a)),"plain errors or defects affecting substantial rights may benoticed although they were not brought to the attention of thetrial court." We find "plain error" where there is an improperelement in the trial and the evidence is closely balanced or whenthe claimed error was seriously prejudicial and precluded a fairtrial for the defendant. People v. Hudson, 157 Ill. 2d 401, 626N.E.2d 161 (l993). Where the statements of prosecutors are atissue, there is reversible error when it is impossible to saywhether or not a verdict of guilty resulted from thosestatements. People v. Nieves, 193 Ill. 2d 513, 739 N.E.2d 1277,1286 (2000).

The majority describes the evidence in this case as"overwhelming." Apparently, the prosecutor did not see it thatway; he found it necessary to either bolster closely balancedevidence or conceal insufficient evidence with totally improperrhetoric. Even if the evidence had been overwhelming, that factdoes not prevent a finding of plain error on the second prong ofthe test -- that the error was seriously prejudicial andprevented defendant from getting a fair trial.

In People v. Blue, 189 Ill. 2d 99, 724 N.E.2d 920 (2000),the court noted: "'A criminal defendant, whether guilty orinnocent, is entitled to a fair, orderly, and impartial trial.'conducted according to law." Blue,189 Ill. 2d at 138, 724 N.E.2dat 941, quoting from People v. Bull, 185 Ill. 2d 179, 214, 705N.E.2d 824 (l998). Citing Justice Ryan's concurring opinion inPeople v. Green, 74 Ill. 2d 444, 455, 386 N.E.2d 272 (1979),("Even those guilty of the most heinous offenses are entitled toa fair trial."), the Blue court indicated that when the integrityof the judicial process is at risk, "the court will act on plainerror regardless of the strength of the evidence of defendant'sguilt." Blue, 189 Ill. 2d at 138-39, 724 N.E.2d at 941.(Emphasis in original.)

Admittedly, the conduct of the prosecutors in Blue and thesubsequent cases People v. Johnson, 208 Ill. 2d 53, 803 N.E.2d405 (2003), was more blatant than that of the prosecutor in thecase at bar. Also, the charged crimes were more serious (actualmurder versus attempt), and the sentences imposed were deathrather than Kendrick Hayes's 24 years. The state and federalconstitutions do not, however, extend the promise of a fair trialonly in capital cases. Criminal defendants are entitled to afair trial regardless of the seriousness of the charged crime andregardless of their guilt or innocence. People v. Blue, 189 Ill.2d at 138, 724 N.E.2d at 940, citing People v. Bull, 185 Ill. 2dat 214, U.S. Const., amend. XIV,